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Ninth Circuit:
Conviction Does Not Require Knowledge Funds Were Acquired Through Extortion
Panel Says 18 U.S.C. §880 Is Violated by Gaining Money With Awareness It Was Illegally Obtained
By a MetNews Staff Writer
A person can be convicted of the federal crime of receiving the proceeds of extortion without knowing that the funds were derived from extortion, the Ninth U.S. Circuit Court of Appeals held yesterday, declaring that the mental element of the offense is knowledge that the money was illegally obtained.
Judge Patrick J. Bumatay wrote for a three-judge panel in affirming the convictions of Ectear Hernandez Lemus and Junior Almendarez under 18 U.S.C. § 880. That statute provides:
“A person who receives, possesses, conceals, or disposes of any money or other property which was obtained from the commission of any offense under this chapter that is punishable by imprisonment for more than 1 year, knowing the same to have been unlawfully obtained, shall be imprisoned not more than 3 years, fined under this title, or both.”
Poses Questions
Bumatay asked, rhetorically:
“[M]ust a person know that the money or property at issue was in fact payment from extortion? Or is it sufficient for a person to know that the money was somehow ‘unlawfully obtained’?”
He answered:
“Based on its plain language, we conclude that § 880 requires only that the government prove knowledge that the proceeds were ‘unlawfully obtained.’ ”
The jurist noted that the words “any offense under this chapter” includes “various offenses ranging from threats against the President…to blackmail…and to making threatening communications.” The case before the court, he said, was based on an extortion entailing transmitting “any communication containing any demand or request for a ransom or reward for the release of any kidnapped person.”
Lemus and Junior Almendarez were charged with complicity in a scheme under which persons who were about to enter the U.S. illegally were kidnapped and held for ransom. They maintained that their convictions were infirm because the jury was misinformed as to the requisite mental element. It was told that, to convict, it must find that “”the defendant knew the money had been unlawfully obtained.”
Their contention was that the words “knowing the same” referred to “any money or other property which was obtained from the commission of any offense” and, given that the offense was extortion, §880 requires knowledge that the money came from extortion.
Bumatay wrote:
“ ‘[T]he same; must refer to something in the previous two clauses.
“When the clauses are read together, it becomes clear that the defendant must only possess knowledge that the money or property at issue is ‘unlawfully obtained.’ ”
Congress’s Intent
He elaborated:
“Under this reading, a defendant only needs to know that the money received, which must be obtained through threats or extortion to fall within § 880, was obtained in any manner contrary to or prohibited by law. Specific knowledge of the money’s origin as proceeds of extortion or threats is unnecessary. If Congress wanted the mens rea requirement to include knowledge of the extortion, it could have easily added ‘from extortion’ to ‘unlawfully obtained.’ It did not. And that should end our inquiry.”
The judge did not end the inquiry there, but discussed various contentions put forth by the defendants, including their insistence that reading the statute to include money obtained other than through extortion would render it void for vagueness. Bumatay responded:
“Even if a jury found that they believe the money came from family members paying smugglers to bring their relatives across the border rather than from kidnapping, an ordinary person would be on notice that both sets of conduct are proscribed. This isn’t a fringe case….”
The case is United States v. Lemus, 22-50046.
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